Wednesday, June 27, 2012

The scenario in the case below is quite common: a person applies for permaennent residency in Canada and fails to disclose the birth of a child during the course of the applciaion, out of fear of being refused residency or delaying the process, and usually based on misinformation given by friends or non-lawyers. And when discovered, the applicant attempts to explain the failure to disclose with nuances and excuses, all of which fail to acknowledge responsibility. In most cases, this scenario can be avoided by full and timely disclosure. Applicants are cautioned not to lie or misrepresent, and to seek advice only from qualified, reputable immigration laweyrs who can evaluate the situation and take remedial action on a timely basis.

1 BOIVIN J.:-- This is an application pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] for judicial review
of a decision rendered by the Immigration Division of the Immigration and
Refugee Board (the Board) dated August 25, 2011, wherein the Board determined
that the applicants were not admissible to Canada pursuant to paragraph 40(1)(a) of the Act.

Factual Background

2 The
applicants, Mr. Florendo Cesar Gatue (the father), Mrs. Vilma Tan Gatue (the
mother) and Ms. Czarina Joy Tan Gatue (the daughter), are all citizens of the
Philippines.

3 The
applicants were sponsored for permanent residency in Canada by their daughter
and sister (respectively), Ms. Christine De Lima. The applicants signed their
applications for permanent residence on April 4, 2008 or June 16, 2008.

4 The
daughter gave birth to her first child on October 16, 2008.

5 On
January 19, 2010, the daughter signed a declaration in support of her
application for permanent residence which required her to immediately inform
the Canadian visa post of any changes in the information or the answers provided
in her application.

6 The
father and mother were issued visas on August 29, 2010, by the Canadian visa
post in Manila, Philippines.

7 The
daughter subsequently gave birth to her second child on September 24, 2010. The
daughter was issued her visa on October 8, 2010.

8 The
applicants arrived in Vancouver on January 14, 2011, in possession of their
confirmations of permanent residence and permanent resident visas. A report was
issued under subsection 44(1) of the Act, dated the same day as their arrival,
which stated that the applicants had directly or indirectly misrepresented or
withheld material information by failing to disclose dependents not included in
the application for permanent residence. As a result, the report concluded that
an avenue of investigation had been foreclosed by the applicants'
misrepresentation.

9 On
February 26, 2011, a request for an Admissibility Hearing was made pursuant to
subsection 44(2) of the Act in order to determine if the applicants were
persons described in paragraph 40(1)(a) of the Act.

10 The
applicants' Admissibility Hearing before the Board took place on May 16, 2011.

Decision under Review

11 The
Board concluded that the applicants were persons described in paragraph 40(1)(a) of the Act due to the fact that they had
misrepresented material facts relating to a relevant matter by failing to
disclose the daughter's two minor children on their application for permanent
residence.

12 The
Board found that the father's testimony revealed that he had never personally
disclosed the birth of his grandchildren. The father claimed that he did not
know that he was required to do so. The Board also noted that the mother
testified that the daughter had completed a form when she attended the medical
examination in the Philippines in 2008 which indicated that she had given birth
to a child. The Board also noted that the daughter acknowledged that she had
not disclosed her children on her application for permanent residence as it had
been submitted before she had children. Although the daughter claimed to have
notified the Visa office that she had one child when she completed the required
medical forms in 2008, the Board outlined that she acknowledged that she never
made any attempt to disclose her second child to immigration authorities prior
to her arrival in Canada.

13 While
the Board noted that it found the applicants to be generally credible, the
Board observed that they had not produced any documentary evidence to establish
the existence and contents of the form completed by the daughter in 2008. The
Board noted that the applicants had testified that they were unable to obtain
the missing form. Though the applicants alleged that they had informed the
medical examination doctor of the birth of the daughter's first child, the
Board was not satisfied that this constituted disclosure of this information to
immigration officials. However, the Board noted that even if it had accepted
that the daughter had disclosed her first child, the Board found that it was
indisputable that she had failed to disclose her second child prior to
receiving her permanent residence visa and arriving in Canada. Though the
daughter explained that she did not know that she had to disclose this
information, the Board affirmed that this requirement was clearly outlined in
the application.

14 The
Board also observed that the CIC Medical Report in the file indicated that the
daughter had given "vaginal delivery 2008" (Tribunal Record, p 69).
However, the Board concluded that this was not sufficient to establish that she
had a dependent child in her care. The Board affirmed that the child in
question could have died or been adopted and thus this document did not
constitute sufficient disclosure of her first child.

15 The
Board held that "by not being forthcoming with immigration officials
regarding the birth of her children, she closed off an avenue of investigation
that may or may not have affected her application"... "...this failure
to disclose was a material fact as it relates to the analysis that must be
undertaken with respect to the definition of "family" under the
family class" (Board's reasons, para 23). The Board observed that the
mother and the father had not been explicitly asked to disclose the existence
of grandchildren, however, the Board declared that they were captured in the
inadmissibility as they were subject to the same requirements of duty and
candour to disclose information changes for persons included in the
application. Thus, the Board held that they had become "complicit in the
misrepresentation that occurred" (Board's reasons, para 24).

Issues

16 The
issue raised in this case is the following:

·Did the Board err in its conclusion that the applicants were
excluded from Canada on the basis of a misrepresentation in breach of section
40 of the Act?

Statutory Provision

17 The
following provision of the Immigration and Refugee
Protection Act is applicable in these proceedings:

·Misrepresentation

·40.

(1) A permanent
resident or a foreign national is inadmissible for misrepresentation

·(a) for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this
Act;

·(b) for being or having
been sponsored by a person who is determined to be inadmissible for
misrepresentation;

·(c) on a final
determination to vacate a decision to allow the claim for refugee protection by
the permanent resident or the foreign national; or

·(d) on ceasing to be
a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection
10(2) of that Act. Fausses déclarations

18 The
applicable case law has established that an assessment of a misrepresentation
decision under section 40 of the Act involves questions of mixed fact and law,
which are reviewable according to the standard of reasonableness (Berlin v Canada (Minister of Citizenship and Immigration), 2011 FC 1117 at para 10, [2011] F.C.J. No. 1372 [Berlin]; Ghasemzadeh v Canada (Minister of Citizenship and Immigration),
2010 FC 716 at para 18, 372 FTR 247). The Court is in agreement with the
respondent in that the credibility findings made by the Board are also
reviewable according to the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 4, 59, [2009] 1 SCR 339).

Analysis

19 In
the present case, the applicants take issue with the Board's credibility
findings and its treatment of the evidence, specifically a CIC Medical Report.
As well, the applicants argue that there was no evidence to demonstrate that
they had deliberately misrepresented. The applicants submit that the Board also
failed to conduct a mens rea
analysis.

20 After
consideration of the Board's decision, the documentary evidence and the
applicants' testimony, the Court cannot agree with the applicants' arguments.
Rather, the Court concludes as to the reasonableness of the Board's findings in
light of the facts of the case and the principles of the applicable
jurisprudence. It was reasonable for the Board to conclude that the
misrepresentations of the applicants in the present case could not be viewed as
innocent or inadvertent.

21 With
respect to the first child born in 2008, the applicants argued that the Board
erred in its analysis of the CIC Medical Report. The applicants state that the
CIC Medical Report did disclose the fact that the daughter had given birth to a
child in 2008. The applicants maintain that the Report clearly shows that the
Visa office received it on February 11, 2010, and therefore the Officer had to
know that the daughter had given birth before it issued the permanent resident
visas to the applicants. On that basis, the applicants advance that the
"door was open to them to investigate: it was open to them to ask if the
child was still living and was the child still with her". However, and
despite the arguments by the applicants, the Court recalls that the onus was on
the daughter to advise the Minister of the fact that she had two children which
she failed to do in this case.

22 The
applicants also argue that the daughter disclosed the fact that she had two
children by informing the Port of Entry Officer at the airport in Vancouver.
Thus, the applicants state that both disclosures occurred during the processing
of the permanent residency application, not after.

23 While
the Court is assessing without deciding and is prepared to admit that there can
be ambiguity over whether the daughter had disclosed the birth of her first
child during her medical examination on the face of the Medical Report
(Tribunal Record, pp 68 and 69), the Court finds that it is uncontested that
the daughter had never reported the birth of her second child (September 24,
2010) prior to arriving in Canada, more precisely in Vancouver (January 14,
2011). The Court also rejects the applicants' argument that the daughter needed
not to report the second child and that the declaration of this second child at
the Port of Entry (POE) sufficed in and of itself. The Court cannot accept the
applicants' reasoning and logic whereby a declaration could always be made at
the POE. To the contrary, the applicants were required to disclose such
information as per the undertaking that they signed in their application form
and the immigration system relied on their "duty of candour". The
Officer cannot be expected to guess and investigate the applicants' situations
on the basis of the information contained in a Medical Report (Tribunal Record,
p 69) as argued by the applicants. It was incumbent upon the applicants to reveal
material and relevant facts and the existence of two children can undoubtedly
be qualified as such. There is nothing on the face of the record that would
allow the Court to conclude that the failure to disclose was innocent or
inadvertent.

24 The
Board's comments at para 21 of its decision are relevant in that regard:

·On this very same Declaration clearly states "This declaration
covers the information I have provided on this forma and all the information
submitted in my application for permanent residence as well as in the attached
schedules and accompanying documents". It also states, "I will
immediately inform the Canadian visa office where I submitted my application if
any of the information or the answers provided in my application forms change".
Therefore, by signing this application, Ms. Tan Gatue declared recognition that
all information provided to immigration officials that formed part of the
immigration application, including the "Additional Family
Information" form that was completed in June 2008 and specifically asked
about children in "Section B" was part of the immigration record. By signing the "Declaration", she also acknowledged her
responsibility to advise immigration officials immediately of any changes to
her answers."

·(Emphasis added)

·(Footnotes omitted).

25 As
such, the Court is of the view that the fact that the daughter disclosed the
existence of her two children upon arrival in Vancouver does not amount to
proper disclosure (Haque v Canada (Minister of
Citizenship and Immigration), 2011 FC 315, [2011]
F.C.J. No. 394 [Haque]; Cabrera v Canada (Minister of Citizenship and Immigration), 2010 FC 709, [2010] F.C.J. No. 864 [Cabrera]; Uppal v Canada (Minister of Citizenship
and Immigration), 2009 FC 445, [2009] F.C.J. No. 557 [Uppal]; Khan v Canada
(Minister of Citizenship and Immigration), 2008 FC 512,
[2008] F.C.J. No. 648 [Khan]).
In the circumstances, the Court is of the opinion that it was reasonable for
the Board to conclude that the daughter had not been forthcoming with immigration
officials.

26 The
Court notes that a similar situation was presented in the case of Mai v Canada (Public Safety and Emergency Preparedness), 2011 FC 101, [2011] F.C.J. No. 127, cited by the Board in its
reasons, where the applicant in question did not report his marriage or the
birth of his child to immigration authorities during the processing of his
application or after his arrival in Canada. The applicant argued that his
misrepresentations were not deliberate or intentional and that he honestly
believed that he was not required to report the changes in question. However,
the Board rejected the applicant's arguments and concluded that the applicant
had made misrepresentations in the sense of paragraph 40(1)(a) of the Act. Justice Martineau concluded as
to the reasonableness of the Board's decision.

27 Furthermore,
in the case of Haque, above, the
principal applicant was found to be inadmissible to Canada under paragraph
40(1)(a) of the Act for having
omitted and misrepresented certain facts in his application for permanent
residence pertaining to his prior studies, residency and work history. Though
the applicants argued that the misrepresentations were not intentional, Justice
Mosley dismissed the application for judicial review and made the following
comments which apply mutatis mutandis in the case at bar:

·[13] Reading sections 40 and 16 of the IRPA together, I agree with
the respondent that foreign nationals seeking to enter Canada have a "duty
of candour" which requires disclosure of material facts: Bodine v. Canada (Minister of Citizenship and Immigration), 2008 FC 848, 331 F.T.R. 200 at paras. 41-42; Baro v. Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para. 15. Indeed, the Canadian immigration system
relies on the fact that all persons applying under the Act will provide truthful and complete information: Cao v. Canada (Minister of Citizenship and Immigration), 2010 FC 450, 367 F.T.R. 153 at para. 28. Mr. Haque's omission
concerning his year-long study period in the United States, discrepancies in
home addresses and work history are material and relevant facts needed in order
to properly assess admissibility.

·[14] Section 3 of the IRPA points to a number of immigration
objectives that should be kept in mind when administering the Act. Among others, these objectives include
enriching and developing the country through social, economic and cultural
means while ensuring the protection and security of Canadians living here. In
order to adequately protect Canada's borders, determining admissibility
necessarily rests in large part on the ability of immigration officers to
verify the information applicants submit in their applications. The omission or
misrepresentation of information risks inducing an error in the Act's administration.

28 In
addition, the Court agrees with the respondent's comments regarding the case of
Maruquin v Canada (Minister of Citizenship and
Immigration) 2007 FC 1349, [2007] F.C.J. No. 1739, in
that it presented "special circumstances" where the change (the birth
of a son) was disclosed before
the permanent residence visas had been issued. Consequently, this case does not
find application in the matter at hand.

29 The
applicants also argued that the Panel erred in law in failing to provide a mens rea analysis in its decision.

30 The
issue of mens rea was mentioned
in the case of Osisanwo v Canada (Minister of
Citizenship and Immigration), 2011 FC 1126, [2011]
F.C.J. No.. 1386, referred to by the applicants. The case of Osisanwo involved an application for judicial
review of an immigration officer's dismissal of an application for permanent
residence on the basis that the applicant made a material misrepresentation
with regard to the paternity of her son. However, the applicant in Osisanwo was not aware that her husband was
not the biological father of her son, which was only revealed after DNA
testing. In his reasons, Justice Hughes stated the following with regards to
the element of mens rea:

·[8] The essential question is whether one takes an
"objective" or "subjective" view as to whether what was
done was "misleading'. Stated another way, is mens
rea an essential ingredient?

·[9] A review of some of the earlier case law is helpful. In Hilario v Canada (Minister of Manpower and Immigration) (1977), 18 NR 529 (FCA), the Federal Court of Appeal considered a
situation where information had been withheld. Justice Heald for the Court said
at the end of the first paragraph at page 530:

·To withhold truthful, relevant and pertinent information may very
well have the effect of "misleading" just as much as to provide,
positively, incorrect information.

·[10] This statement carries with it the implication of
"withholding" and "providing", which is to say, mens rea is involved.

31 Ultimately,
Justice Hughes determined that the misrepresentations in question were entirely
inadvertent and that there was no reasonable basis for concluding that there
was any mens rea to mislead.
However, the Court finds that the case of Osisanwo, above, is wholly distinguishable from the case at hand, as the
daughter, mother and father all had knowledge of the material fact that
constitute the misrepresentation (the children's births) and withheld that
information.

33 Rather,
the Court finds that, on the basis of the evidence on record, the applicants
were not forthright in their dealings with immigration authorities and thereby
did not fulfill their "duty of candour". Consequently, the Court
concludes that the Board's decision is reasonable and the application for
judicial review will be dismissed.

The Proposed Questions for Certification

34 The
applicants proposed the following questions for certification:

·1.

Is a foreign national
inadmissible for withholding a material fact pursuant to paragraph 40(1)(a) of IRPA if they have disclosed a material
fact to a visa office that opens a door for investigation by the visa
office?

·2.

Is a foreign national
inadmissible for withholding a material fact before visa issuance but
disclosing that before the permanent resident application process has been
completed?

·3.

Is it incumbent upon a
decision maker, making a paragraph 40(1)(a) of IRPA misrepresentation finding to first conduct a mens rea analysis?

·4.

Once a foreign national
discloses a material fact to a visa office does the onus shift from the foreign
national to the visa office to investigate?

35 The
Federal Court of Appeal stated the necessary criteria for certifying a question
of general importance in Canada (Minister of Citizenship
and Immigration) v Liyanagamage (FCA), [1994] F.C.J.
No. 1637, 176 NR 4. The proposed questions must transcend the interests of the
immediate parties to the litigation, contemplate issues of broad significance
or general application and be determinative of the appeal. In the Court's view,
the questions formulated by the applicant do not satisfy these criteria.

36 With
respect to the first question, the Court agrees with the respondent that it is
not of broad significance or general application as it essentially restates the
issue which was before the Court to be determined on its particular facts. More
particularly, when a misrepresentation prevents an officer from making a proper
determination of one's application in Canada, it equates a material
representation (Bodine v Canada (Minister of Citizenship
and Immigration), 2008 FC 848, [2008] F.C.J. No. 1069).

37 Concerning
the second question, the Court has decided that a misrepresentation of material
facts is not cured simply because it is corrected before the decision is
rendered (Haque, above, at para
17; Cabrera, above, at para 40; Uppal, above, at paras 30-31; Khan, above, at para 25). Moreover, in this
case, the Court found that there was no attempt to inform the visa post of the
birth of the children (clearly the second child) before a decision was made to
issue the applicants visa.

38 The
third question is not relevant in order to dispose of this case. Indeed, and
the Court agrees with the respondent, that the Board asked the applicants to
explain why the existence of the children was not disclosed to the Canadian
visa post, it analyzed the explanation and reasonably concluded that it was not
an innocent misrepresentation.

39 Finally,
it is trite law that the applicants have a duty of candour to disclose all
material facts both before and after a visa is issued (Ghasemzadeth
v Canada (Minister of Citizenship and Immigration),
2010 FC 716, [2010] F.C.J. No. 875, and, in this case, the Court found that the
second child was clearly not disclosed.

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About Me

I am a Canadian lawyer (Barrister and Solicitor) and a Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada, a recognized expert in Canadian immigration law.

I am an honors graduate in Political Science from York University and I obtained my Law degree from Osgoode Hall Law School. I speak fluent English, French and Spanish and have a working knowledge of Italian, Portuguese and German. I am a member of the Law Society of Upper Canada and the Canadian Bar Association (CBA), Past Chair of the Citizenship and Immigration Section of the Ontario Bar Association (OBA), Past Chair of the Immigration and Nationality Committee of the International Bar Association (IBA) and current Vice-Chair of the Canada Committee of the American Bar Association (ABA) Section of International Law. I am also a member of the American Immigration Lawyers Association (AILA).